OHADA Arbitration

For more than a decade OHADA(the Organization for the Harmonization of Business Law in Africa) has promoted the use of arbitration in its seventeen Member States1. In 1999 it adopted the Uniform Act on Arbitration, which it subsequently revised in 2014. The Act is directly applicable in all Member States and overrides any conflicting provisions of domestic legislation. It sets out the basic rules applicable to arbitrations having their seat in an OHADA Member State and is largely based on the UNCITRAL Model Law.

Parties seeking to arbitrate under OHADA have the choice between ad hoc arbitration under the Uniform Act on Arbitration and institutional arbitration according to the Arbitration Rules of the Common Court of Justice and Arbitration (“CCJA”). The CCJA is the leading arbitral institution for Central and West Africa, based in Abidjan, Ivory Coast. The CCJA also serves as the Supreme Court of the Member States on OHADA business law (including arbitration) and can be seized as a last resort.

Recent CCJA’s decisions show support for the use of the arbitration in the region. For example, on 15 October 2015 the CCJA rejected a challenge filed by International Business Corporation SA (“IBC”) against an arbitral award on, among others, the ground that the arbitral award had been rendered one month after the time-limit, fixed by the CCJA pursuant to Article 15(4) of the CCJA Arbitration Rules, had expired2. According to IBC, that violated both the Uniform Act on Arbitration and the CCJA Arbitration Rules.

The CCJA, in its capacity of the annulment court (Article 29 of the CCJA Arbitration Rules), rejected these arguments. It held that the Uniform Act on Arbitration did not apply as the CCJA, in its capacity of the arbitral institution overseeing the arbitration, had fixed Paris, France, as the place of arbitration (Article 1 of the Uniform Act on Arbitration, Article 13 of the CCJA Arbitration Rules). Moreover, it considered that a violation of Article 15(4) of the CCJA Arbitration Rules did not result in the nullity of the award. The CCJA pointed out that, in accordance with its established case law, it was well accepted that procedural timetables are of a provisional nature and hence may be subject to change. Such changes do not automatically lead to a violation of the arbitrators’ mandate.

While it is not entirely clear from the decision whether the CCJA had extended the time-limit by one month, or if there had been an oversight, it is clear that the CCJA considers that the time-limit of Article 15(4), resulting in the end of the arbitrators’ mandate, is not imperative, but merely serves as guidance for the arbitrators as to the expectations of the CCJA.